State v. Lewis

• Decision Date: 19 October 1915
• Docket Number: No. 30454.,30454.
• Citation: 154 N.W. 432,173 Iowa 643
• Parties: STATE v. LEWIS.
• Court: Iowa Supreme Court

173 Iowa 643

154 N.W. 432

STATE

v.LEWIS.

No. 30454.

Supreme Court of Iowa.

Oct. 19, 1915.

Appeal from District Court, Jefferson County; D. M. Anderson, Judge.

The defendant was convicted of assault with intent to rob, and appeals. Reversed and remanded.James A. Devitt, of Oskaloosa, and Charles D. Leggett, of Fairfield, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

LADD, J.

[1][2][3] In the evening of May 22, 1914, Harold Tropp and Edwin M. Cox went to Court Hotel, in Fairfield, where they observed the proprietor, Dunlevy, asleep on a cot in a back room. Tropp took off his shoes, and, armed with a leather sap and a loaded revolver, moved quietly to the head of the cot, when Dunlevy, feeling the presence of some one in the room, sprang to his feet. Tropp ran out with Dunlevy after him. He stumbled or was knocked down, and Dunlevy undertook to hold him, when Cox, who had waited in the washroom, struck Dunlevy with a lead pipe, and both escaped. Dunlevy testified that no one had touched or tried to take anything from his person. Tropp, who had pleaded guilty, swore that he did not speak to or touch Dunlevy, but that:

He “made a movement under his pillow and he jumped. Q. You were trying to sneak the money from under his pillow without waking him up? A. Yes, sir. Q. And just the minute he waked up you took to your heels? A. Yes, sir. * * * Q. Did you have any intention at the time to get something if you had to take it away by force? A. No; I do not believe I did. Q. What were you doing with the gun and billy? A. Just a bluff. Q. Your object was to scare? A. The gun was there for a bluff. I was to get the money without waking him. * * * Q. I will ask you whether or not you did have any intention of scaring the money out of Mr. Dunlevy? A. We went in there, and when we seen he was asleep, that is the way that we were going to get the money. I had no-- The gun was for a bluff. Q. For a bluff to whom? A. To Dunlevy if he attacked me.”

Cox testified that:

“When we went in there, Tropp went in to hit him and get the money. Q. Do you know what Harold's intention was? A. He intended to hit him. Q. He had a pocket billy and a revolver? A. Yes, sir. Q. He said his intention was to get the man's money? A. Yes, sir.”

This is all the evidence bearing on the commission of the offense charged, and it is contended on the part of the defendant that it was insufficient to warrant a finding that Tropp was guilty of an assault with intent to rob, and therefore that Lewis, who was accused of having aided and abetted him therein, should have been acquitted. The charge is assault with intent to commit the crime of robbery. That offense is defined in the statute, in substance, as at common law, in declaring that:

“If any person, with force or violence, or by putting in fear, steal and take from the person of another any property that is the subject of larceny, he is guilty of robbery.” Section 4753, Code.

“If any person assault another with intent to * * * rob, steal, * * * he shall be punished” as prescribed. Section 4770, Code.

Robbery differs from larceny from the person in that the taking in the former must be by force or intimidation, while in the latter this is not necessary. State v. Miller, 83 Iowa, 291, 49 N. W. 90. Larceny from the person is included in the crime of robbery. State v. Reasby, 100 Iowa, 231, 69 N. W. 451. And, this being so, assault with intent to steal also is included within the offense charged in the indictment. The evidence leaves no doubt but that Tropp slipped stealthily into the room to the head of the cot with the design of stealing money from beneath Dunlevy's pillow. But this alone would not be enough. To constitute the crime charged there must have been an assault. This has been defined often, but ordinarily with reference to the facts under consideration. That found in 3 Cyc. 1020, seems comprehensive and accurate:

“An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.” State v. Cody, 94 Iowa, 169, 62 N. W. 702; Tarver v. State, 43 Ala. 354; People v. Lilley, 43 Mich. 521, 5 N. W. 982.

It has been described as inchoate violence with the person of another with present means of carrying the intent into effect. The intent is of the essence of the offense, and it is to be ascertained from the circumstances of each case. Richels v. State, 1 Sneed (Tenn.) 606. The authorities agree that there must be an attempt or offer to apply force to another in addition to such intention and the present means to give it effect. Haupt v. Swensen, 125 Iowa, 694, 101 N. W. 520.

Here Tropp had the means in his hands, and, as said, might have entertained the purpose to use them in the contingency that it became necessary to do so in taking the money or in effecting his escape therewith. If he “made a movement under the pillow,” it was solely for the purpose of obtaining the money and without intention to touch or injure Dunlevy in any manner, and therefore this could not be said to constitute an assault. Com. v. Ordway, 12 Cush. (66 Mass.) 270;Hall v. People, 171 Ill. 540, 49 N. E. 495. The force in robbery is that necessary to overcome resistance or overcome the person robbed, and this movement had no connection with either. Striking him with the lead pipe was an assault, but not in the perpetration of the offense undertaken. Tropp then had abandoned his purpose to rob or steal, and was trying to make his escape, and Cox used the lead pipe merely to enable him to effect his escape. Had Tropp obtained money from beneath the pillow and the lead pipe had been used to enable him to retain it and carry it away, a different question would have been presented and one upon which the authorities are not agreed. As what was done by Cox was after the intent to rob or steal had been abandoned, it could not have preceded or been concomitant with the undertaking to steal the money, and this is held essential by the great weight of authority. Thomas v. State, 91 Ala. 34, 9 South. 81;Hanson v. State, 43 Ohio, 376, 1 N. E. 136; 24 Am. & Eng. Ency. of Law (2d Ed.) 996. The mere fact that the attempt or endeavor to do violence is connected with a condition will not shield the accused. State v. Mitchell, 139 Iowa, 455, 116 N. W. 808. To amount to an attempt or endeavor essential to an assault, an act indicative of the intent is essential for a man may intend what he will so long as he does nothing toward carrying it out. State v. Thompson, 133 Iowa, 741, 111 N. W. 319. If there is some distinct movement violent in its nature toward the victim and involved in the perpetration of the offense, such movement would seem sufficient to constitute an assault to commit. Quoting from 2 Bishop's New Crim. Law, § 1169, in defining what is essential in robbery:

“An assault which has not traveled to a battery, or probably any array of force as is calculated to create the reasonable apprehension, though short of a technical assault suffices.”

See State v. Gorham, 55 N. H. 152.

Thus...